Williams v. Jett

Citations: 2002 Ore. App. LEXIS 1494; 183 Or. App. 611; 54 P.3d 624Docket: 00CV0240ST; A114621

Court: Court of Appeals of Oregon; September 25, 2002; Oregon; State Appellate Court

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Plaintiff appeals a summary judgment that dismissed her malpractice claim against a doctor, citing that her service of the complaint was inadequate and time-barred. Plaintiff contends that her service complied with ORCP 7 D(1), arguing it was reasonably calculated to notify the defendant. The court agrees with the plaintiff and reverses the judgment. The relevant facts include that the defendant, a gynecologist, performed surgery on the plaintiff in June 1998, after which complications led to emergency surgery. Plaintiff filed her malpractice lawsuit on May 31, 2000, and service was attempted on June 2, 2000, when the sheriff delivered the complaint to someone at the defendant's office. The sheriff completed the return of service on June 5, and the plaintiff filed it with the court on June 6. The defendant’s attorney acknowledged receipt of the complaint on that date, requesting notification before any default judgment was pursued. However, the plaintiff did not take further action to effectuate service. The defendant later filed an answer citing insufficient service and moved for summary judgment, which the trial court granted. On appeal, the court focuses on whether the service met the standards outlined in ORCP 7, referencing Baker v. Foy, which establishes that service is presumptively effective if it follows prescribed methods.

If the presumption of adequate service is rebutted or inadequately served, the method of service must still be 'reasonably calculated' to inform the defendant of the action, as per ORCP 7 D(1). In this case, both parties agree the initial presumption of adequacy fails. ORCP 7 D(3)(a)(i) allows for personal, substituted, office, or mail service, but the plaintiff did not attempt personal, substituted, or mail service. Although the sheriff delivered the summons to the defendant’s office, the plaintiff did not complete 'office service' as required by ORCP 7 D(2)(c) because they did not send a follow-up mailing. The appeal's resolution hinges on whether the service method met the 'reasonable notice' standard of ORCP 7 D(1). 

The plaintiff does not argue that the sheriff's delivery alone satisfies ORCP 7 D(1) or that actual notice through the defendant’s counsel excused noncompliance. Instead, the plaintiff contends that service was adequate based on two points: (1) the sheriff's delivery to the office representative initiated presumptively sufficient service, and (2) defendant’s counsel informed the plaintiff’s counsel of receiving the complaint before the follow-up mailing was sent. 

The plaintiff's argument suggests that the assessment of service should consider the entire time frame surrounding the delivery, treating it as a 'camcorder video' rather than a 'snapshot.' This perspective includes developments up to June 7, including the receipt of defendant’s counsel’s letter. In contrast, the defendant argues for a 'snapshot' view, asserting that the evaluation should be limited to the moment of delivery on June 2. The court agrees with the plaintiff, ruling that the assessment of service must encompass all circumstances within the reasonable follow-up period, including the counsel's letter received on June 7.

In Stull v. Hoke, the court addressed the adequacy of service of process where the plaintiff delivered the summons and complaint to a receptionist at the defendant's attorney's office. The process server later confirmed with the receptionist that the attorney received the documents. Although the plaintiff did not mail the documents subsequently and there was no evidence the receptionist was an authorized agent for service, the court reversed the trial court's dismissal, finding that the service was reasonably calculated to provide notice to the defendant. The totality of circumstances, including the process server's inquiry and confirmation that the defendant was reading the documents, supported this conclusion. In Korgan v. Gantenbein, a similar situation occurred where the summons was delivered to a person at the defendant's residence, and despite a subsequent motion to dismiss for improper service, the court found that the service was sufficient to inform the defendant of the legal action, warranting a reversal of the dismissal. Both cases emphasize that service methods must be reasonably calculated to ensure defendants are informed and have an opportunity to defend themselves, taking into account the circumstances surrounding the attempted service.

The defendant was deemed to have actual notice of the legal action due to his attorney's letter, which negated any claims of material prejudice arising from incomplete substituted service. In the case of Pham v. Faber, the court clarified that while actual notice does not remedy technical deficiencies in service, the totality of circumstances—including the timing of communication between the attorneys—can validate the service under ORCP 7 D(1). Specifically, the court confirmed that the absence of a follow-up mailing does not invalidate adequate service if the defendant is otherwise informed. 

In this instance, defense counsel's letter was received by the plaintiff's attorney shortly after the sheriff delivered the summons and complaint, indicating that the defendant was aware of the action. ORCP 7 D(2)(c) requires a follow-up mailing to be sent as soon as reasonably possible, but since the defendant’s attorney communicated promptly, the plaintiff's attorney was justified in believing that further mailing was unnecessary. The sheriff's delivery of the summons to the defendant's office and the subsequent letter from defense counsel were sufficient to satisfy the requirements of ORCP 7 D(1), similar to the precedent established in Korgan, where timely communication indicated the defendant's awareness of the action, thereby alleviating the need for additional service steps.

In the case referenced, the court found that the plaintiff's method of service was adequate under ORCP 7 D(1), despite the absence of a follow-up mailing. The plaintiff delivered the summons and complaint to a person at the defendant's professional address, a reasonable assumption being that this individual would relay the documents to the defendant. The court cited previous cases (Stull, Hoeck, and Boyd) indicating that service can be sufficient even without clear evidence of the recipient's authority to accept service, as long as there is an inference of regular communication between the attorney and their office staff.

The plaintiff's failure to mail a copy of the summons and complaint afterward was not deemed detrimental, as the plaintiff could reasonably believe, based on representations from defense counsel, that the defendant had received the documents and was aware of the action against them. The trial court's ruling granting summary judgment in favor of the defendant on the grounds of improper service and a time bar was therefore reversed and remanded.

Additionally, while the plaintiff raised questions about the defendant’s potential waiver of personal jurisdiction objections, the court did not address those matters due to its decision on the service issue. The court noted that, according to ORCP 7 D(2)(c), office service is complete upon mailing, emphasizing that timely follow-up is crucial but was fulfilled adequately under the circumstances. The court also distinguished the current case from Stull, noting that although the time lapse in service was longer than in Stull, it still fell within an acceptable timeframe for follow-up actions.